MacDonald v. Harold

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

BRYAN ALEXANDER MACDONALD, Case No. 6:20-cv-00931-AA

Plaintiff, OPINION AND ORDER

v.

CLIFTON HAROLD; CLINT RILEY,

Defendants.

___________________________________

AIKEN, District Judge.

Plaintiff, a former pretrial detainee at Lane County Adult Corrections (LCAC), filed this

action pursuant to 42 U.S.C. § 1983 and alleged violations of his federal constitutional rights

arising from LCAC’s response to the COVID-19 pandemic and alleged retaliatory actions taken

against him. Defendants now move for summary judgment on all claims. Plaintiff fails to present

evidence raising genuine issues of material fact to defeat summary judgment, and defendants’

motion is granted.

BACKGROUND

On January 27, 2020, plaintiff was booked into LCAC as a pretrial detainee. Plaintiff

remained incarcerated at LCAC until July 28, 2020, when he was transferred to the custody of

the Oregon Department of Corrections. Rice Decl. ¶ 29 (ECF No. 61).

On February 28, 2020, Oregon announced its first presumptive case of COVID-19, a

highly contagious and airborne virus. See https://www.oregon.gov/oha/ERD/Pages/Oregon-First-

Presumptive-Case-Novel-Coronavirus.aspx.; https://www.epa.gov/coronavirus/indoor-air-and-

coronavirus-covid-19. By March 8, 2020, Governor Kate Brown had declared a state of

emergency in Oregon and began issuing executive orders designed to combat the spread of

COVID-19. See Or. Ex. Order No. 20-03 (Mar. 8, 2020); Maney v. Brown, 464 F. Supp. 3d 1191,

1198 (D. Or. 2020).

On March 15, 2020, LCAC began implementing measures in response to the COVID-19

pandemic. Rice Decl. ¶ 3. LCAC staff began screening new inmates and placing them in

isolation, quarantine, or observation, and jail staff increased sanitation measures. Id. ¶ 4-6. As of

April 9, 2020, LCAC required inmate workers to wear masks and gloves. Id. ¶ 5. The inmate

population at LCAC was eventually reduced by almost one third (from 382 to 260) through a

coordinated effort between the state Circuit Court and jail officials. Id. ¶ 16. This reduction

allowed LCAC to better implement recommended physical-distancing measures among inmates.

Id. ¶ 17.

To reduce the number of individuals entering the facility, LCAC suspended in-person

social visitation and religious services. Rice Decl. ¶¶ 19-20. Inmates’ attorneys were provided

with remote access to their clients and could request in-person meetings governed by strict safety

measures. Id. ¶¶ 25-26. Inmates remained able to engage in social visitation through telephone

and video calls, and LCAC claims it provided complimentary minutes of telephone and video

visits. Id. ¶ 19. In lieu of in-person religious services, inmates could view pre-recorded services

conducted by LCAC’s chaplain or request individual meetings with the chaplain or other

religious volunteers. Id. ¶¶ 21-23. Religious reading materials also remained available to

inmates. Id. ¶ 24.

Prior to May 19, 2020, COVID-19 testing at LCAC was available to inmates who had

known contact with a person who tested positive for COVID-19 or inmates who had experienced

specific symptoms of the virus, such as a high temperature and respiratory symptoms. Rice Decl.

¶ 7; Quillan Decl. ¶ 2 (ECF No. 83). On May 19, 2020, every LCAC inmate was offered the

opportunity to be tested for COVID-19. If a new inmate declined to be tested, the inmate was

placed in a single cell for fourteen days. Rice Decl. ¶ 8. If any inmate experienced symptoms

consistent with COVID-19, the inmate was tested for COVID-19 and all inmates in that unit

were housed in separate cells pending the test result. Id. ¶ 9.

As of July 20, 2020, LCAC had tested 1,108 inmates for COVID-19; two inmates tested

positive and fifty-five were awaiting the return of test results. Rice Decl. ¶¶ 11-12. Plaintiff was

not one of the inmates who tested positive. The two inmates who tested positive were kept in

isolation, quarantine, or observation until they were released from the facility. Id. LCAC

subsequently determined that the two inmates became infected with COVID-19 prior to being

booked into LCAC. Id. ¶ 15. As of July 28, 2020, no LCAC deputies reported positive test

results for COVID-19. Id. ¶ 13.

While plaintiff was incarcerated at LCAC, he initiated a hunger strike to protest the

conditions at LCAC and indicated his intent to file suit against LCAC officials. Rice Decl. ¶ 35.

On June 9, 2020, plaintiff filed this federal action.

DISCUSSION

Plaintiff raises several claims arising from defendants’ response to the COVID-19

pandemic. First, plaintiff alleges that defendants exhibited deliberate indifference to his health

and safety in violation of the Fourteenth Amendment by failing to take adequate safety measures

to protect inmates from COVID-19. Second, plaintiff claims that LCAC’s suspension of in-

person visitation and religious services interfered with his Sixth Amendment right to counsel and

violated his First Amendment rights of association and religious freedom. Third and finally,

plaintiff alleges that jail officials retaliated against him because he exercised his First

Amendment right to file grievances and pursue legal action. See Sec. Am. Compl. (ECF No. 36).

Defendants move for summary judgment on all claims. To prevail on their motion,

defendants must show there is no genuine dispute as to any material fact and they are entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). The court must construe the evidence and draw all reasonable inferences in the light most

favorable to plaintiff. Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011).

A. COVID-19 Safety and Testing Measures

Plaintiff alleges that defendants failed to implement adequate safety measures in response

to the COVID-19 pandemic. Defendants counter that LCAC officials responded as best they

could with the limited information and resources available to them and that plaintiff fails to show

deliberate indifference to his health or any resulting harm.

As a pretrial detainee at LCAC, plaintiff’s rights derived from the Due Process Clause of

the Fourteenth Amendment rather than the Cruel and Unusual Punishments Clause of the Eighth

Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 & n. 16 (1979). While a deliberate

indifference standard applies to all claims alleging unsafe prison conditions, Fourteenth

Amendment claims brought by pretrial detainees are evaluated pursuant to an objective standard

of deliberate indifference rather than the partially subjective standard applicable to Eighth

Amendment claims.1 See Gordon v. Cty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018)

(holding that that claims arising from the conditions of confinement “brought by pretrial

detainees against individual defendants under the Fourteenth Amendment must be evaluated

under an objective deliberate indifference standard”).

Under this standard, plaintiff must present evidence showing that:

(i) the defendant made an intentional decision with respect to the conditions under

which the plaintiff was confined; (ii) those conditions put the plaintiff at

substantial risk of suffering serious harm; (iii) the defendant did not take

reasonable available measures to abate that risk, even though a reasonable official

in the circumstances would have appreciated the high degree of risk involved…;

and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries.

Id. at 1125. “With respect to the third element, the defendant’s conduct must be objectively

unreasonable, a test that will necessarily ‘turn[] on the facts and circumstances of each particular

case.’” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (quoting Kingsley v.

Hendrickson, 576 U.S. 389, 397 (2015)). Plaintiff presents insufficient evidence to demonstrate

that LCAC officials acted with deliberate indifference to the serious risks posed by COVID-19.

During plaintiff’s incarceration at LCAC, jail officials isolated new arrestees and inmates

experiencing symptoms of COVID-19, increased sanitation measures, suspended in-person

visitation to reduce the risks of infection posed by visitors, provided masks and gloves to

inmates, and eventually provided COVID-19 testing to the entire inmate population. See

generally Rice Decl. Plaintiff presents no evidence that these measures were ineffective or

1 Generally, a deliberate indifference claim under the Eighth Amendment requires: 1) an

objective showing that the deprivation was “sufficiently serious” and 2) a subjective showing

that the defendant was aware of the risk to the prisoner’s health or safety and deliberately

disregarded that risk. Farmer v. Brennan, 511 U.S. 825, 834, 847 (1994).

unreasonable under the circumstances or that the lack of additional measures placed him and

other inmates in danger. To the contrary, LCAC did not experience a COVID-19 outbreak while

plaintiff was detained at LCAC, and at the time of plaintiff’s transfer from LCAC, no deputies

and only two inmates had tested positive for COVID-19. Notably, those inmates became infected

before they were booked into LCAC.

Plaintiff does not dispute these facts. Instead, plaintiff contends that LCAC officials

exhibited deliberate indifference by failing to test him for COVID-19 when he experienced a

sore throat in March 2020. Pl.’s Resp. at 7-8 (ECF No. 81). However, testing for COVID-19 was

not widely available in March 2020, and LCAC tested only those inmates who had 1) known

contact with a person who tested positive for COVID-19 or 2) a fever of at least 100.4 degrees

combined with a lower respiratory symptom, such as a cough, sore throat, or shortness of breath.

Quillan Decl. ¶ 2. Plaintiff did not report a fever in March 2020 and did not meet the criteria to

receive a COVID-19 test. Id. ¶¶ 3-4. Given the limited resources available, I do not find that

LCAC was deliberately indifferent to plaintiff’s health or safety by limiting testing to inmates

who were exposed to COVID-19 or had exhibited two established symptoms. Moreover, plaintiff

does not allege that defendants failed to provide medical care for his symptoms in March 2020,

and he alleges no harm caused by the failure to administer a COVID-19 test at that time.

Plaintiff also emphasizes that LCAC officials did not require jail staff to wear masks at

all times until July 2020. Pl’s Resp. at 5-6, 8-10. Defendants counter that guidance regarding the

necessity or efficacy of masks was inconsistent and confusing in the early stages of the

pandemic, and the Oregon Health Authority did not impose a mask mandate in Lane County

until July 2020. See Defs.’ Reply at 3-6; see also https://www.oregon.gov/oha/ERD/Pages/OHA-

Announces-New-Mask-Requirements-Website.aspx.

I note that in late March of 2020, the Centers for Disease Control and Prevention

recommended that correctional staff wear face masks and other protective gear in certain

situations. See Interim Guidance on Management of Coronavirus Disease 2019 (COVID-19) in

Correctional and Detention Facilities, at 1, 24-25 & Table 1 (Mar. 27, 2020) (found at

https://www.bop.gov/foia/docs//CDCCorrectionalfacilityguidance3.23.pdf); see also

https://www.cdc.gov/coronavirus/2019-ncov/community/correction-detention/guidance-

correctional-detention.html; Maney, 464 F. Supp. 3d at 1198. Given this recommendation and

the threat posed by COVID-19, LCAC officials could have, and perhaps should have, imposed

staff masking requirements before July 2020 in an abundance of caution. However, I cannot find

that the failure to do so constitutes deliberate indifference when only two inmates tested positive

for COVID-19 during plaintiff’s incarceration, and those inmates became infected before being

booked into LCAC.2 While these facts are not necessarily dispositive of plaintiff’s claims, they

support the reasonableness of LCAC’s safety measures at that time.

Plaintiff presents no evidence raising a genuine issue of material fact necessary to sustain

a Fourteenth Amendment claim arising from LCAC’s response to the COVID-19 pandemic.

Accordingly, summary judgment is granted on this claim.

B. Restrictions on In-Person Visitation and Religious Services

a. Right to Counsel

Plaintiff’s claims that LCAC’s restrictions on in-person visitation interfered with his

Sixth Amendment right to counsel by hindering his ability to speak confidentially and review

2 Defendants make a passing reference to the lack of available personal protective

equipment (PPE) in 2020, and the CDC correctional guidance anticipated shortages of PPE such

as masks. Defs.’ Reply at 1. Had either party presented evidence on the subject, the Court would

have considered the lack of available PPE and masks when assessing the reasonableness of

defendants’ COVID-19 response.

evidence with counsel. Defendants argue that LCAC imposed visitor restrictions to limit the

potential spread of COVID-19 and protect the health and safety of inmates and staff. Defendants

emphasize that LCAC officials did not forbid all in-person meetings between inmates and

counsel and provided other means for inmates and counsel to communicate.

Criminal defendants have a Sixth Amendment right to the effective assistance of counsel.

Gideon v. Wainwright, 372 U.S. 335, 339-41 (1963). “The core of this right has historically been,

and remains today, ‘the opportunity for a defendant to consult with an attorney and have him

investigate the case and prepare a defense for trial.’” Kansas v. Ventris, 556 U.S. 586, 590 (2009)

(quoting Michigan v. Harvey, 494 U.S. 344, 348 (1990)). At the same time, “[n]ot every

restriction on counsel’s time or opportunity to investigate or to consult with his client or

otherwise prepare for trial violates a defendant’s Sixth Amendment right to counsel.” Morris v.

Slappy, 461 U.S. 1, 11 (1983). In the prison context, regulations that impede an inmate’s

constitutional rights will be upheld if the regulation “is reasonably related to legitimate

penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987).

Under Turner, the Court must consider four factors when assessing the reasonableness of

a prison regulation: 1) whether there is a “valid, rational connection between the prison

regulation and the legitimate governmental interest put forward to justify it”; 2) “whether there

are alternative means of exercising the right that remain open to prison inmates”; (3) “the impact

[that] accommodation of the asserted constitutional right will have on guards and other inmates,

and on the allocation of prison resources”; and 4) whether “the existence of obvious, easy

alternatives” shows that “the regulation is not reasonable, but is an exaggerated response to

prison concerns.” Id. at 89-90 (internal quotation marks omitted).

Given the highly contagious and potentially deadly nature of COVID-19, LCAC’s

visitation requirements and restrictions were rationally related to the legitimate goal of reducing

the risk of COVID-19 infections and protecting the health and safety of inmates, jail staff, and

visitors. Further, LCAC provided alternative means for inmates to communicate with attorneys,

and plaintiff does not dispute that he could communicate with counsel by telephone or that

counsel could have requested and arranged for in-person visitation. Plaintiff presents no evidence

suggesting that LCAC officials denied a visitation request from his attorney or otherwise

prevented plaintiff from communicating with his attorney. The resumption of in-person visitation

would have negatively affected LCAC by exposing inmates, staff, and visitors to a greater

chance of COVID-19 infection and requiring LCAC to take additional safety measures to

accommodate unrestricted in-person visitation between inmates and counsel. Finally, in light of

the risks posed by COVID-19, LCAC’s measures were not exaggerated and unreasonable.

Accordingly, LCAC’s restriction on visitors was rationally related to the goal of

protecting health and safety and did not impermissibly infringe on plaintiff’s right to counsel.

See United States v. Topps, 2020 WL 5890433, at *14-16 (D. Alaska Oct. 1, 2020) (upholding

visitor restrictions imposed in response to the COVID-19 pandemic); United States v. Kemmerer,

2020 WL 4697982, at *9-10 (S.D. Cal. Aug. 13, 2020) (accord).

b. Freedom of Association

Next, plaintiff contends that LCAC’s suspension of in-person social visitation violated

his First Amendment right of association. Defendants maintain that LCAC’s restrictions were

reasonable under the circumstances did not unduly burden plaintiff’s rights.

While an inmate’s right of association is not “altogether terminated by incarceration,” the

Supreme Court has recognized that “freedom of association is among the rights least compatible

with incarceration.” Overton v. Bazzetta, 539 U.S. 126, 131 (2003). As with plaintiff’s right to

counsel, this Court must look to whether LCAC’s restrictions on visitation were rationally

related to “legitimate penological interests” and whether plaintiff had alternative means to

exercise his rights. Id. at 132.

LCAC suspended in-person visitation to reduce the number of people entering the facility

and lessen the risk of exposing inmates, staff, and visitors to persons infected with COVID-19.

Faced with the highly contagious and potentially deadly nature of COVID-19, LCAC’s

suspension of in-person visitation was more than rationally related to the legitimate goal of

protecting the health and safety of inmates, jail staff, and visitors. LCAC provided alternative

means for inmates to associate with friends and family through telephone and video visits and

provided complimentary telephone minutes. As noted above, the resumption of in-person

visitation would have significantly affected LCAC’s operations and increased the risk of

infection, and for those reasons, LCAC’s measures were not exaggerated.

Plaintiff nonetheless asserts that “free video visits” were unavailable for “periods of

time,” but he does not specify when these alternatives were unavailable, for how long, or for

what reason. Pl.’s Resp. at 13. Moreover, plaintiff does not dispute that he made numerous

telephone calls and was otherwise able to communicate with people outside the facility. See Rice

Decl. ¶ 38.

Plaintiff also argues that the suspension of visitation was not necessary because in-person

visitation “behind Plexiglas air tight barriers” would have addressed LCAC’s concerns. Pl.’s

Resp. at 14. Even if plaintiff’s highly dubious assertion was correct, Plexiglas barriers would not

have provided protection between visitors and jail staff, who could have infected each other with

COVID-19 and others inside and outside of LCAC.

Thus, LCAC’s restrictions on in-person visitation were reasonable under the

circumstances and did not impermissibly restrict plaintiff’s right of association.

c. Free Exercise of Religion

Plaintiff also alleges that LCAC’s suspension of in-person religious services violated his

right to the free exercise of his religion. Defendants again argue that LCAC’s measures were

reasonably and necessary to protect the safety of inmates, staff, and visitors, and that alternative

means of worship were provided to inmates.

The right to religious freedom prohibits government entities or officials from imposing a

substantial burden on the exercise of sincerely-held religious beliefs. Jones v. Williams, 791 F.3d

1023, 1031, 1033 (9th Cir. 2015). “[G]overnment action places a substantial burden on an

individual’s right to free exercise of religion when it tends to coerce the individual to forego her

sincerely held religious beliefs or to engage in conduct that violates those beliefs.” Id. at 1033.

While the “right to exercise religious practices and beliefs does not terminate at the prison door,”

an inmate’s right “is necessarily limited by the fact of incarceration, and may be curtailed in

order to achieve legitimate correctional goals.” McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir.

1987); see also O’Lone v. Shabazz, 482 U.S. 342, 348 (1987).

For the reasons explained above, LCAC’s suspension of in-person religious services was

rationally related to the legitimate goal of preventing the spread of COVID-19 and was not an

unreasonable or exaggerated response. In lieu of in-person services, LCAC provided inmates

with access to religious materials and weekly recorded services and offered inmates the

opportunity to arrange telephone or video visits with the chaplain or religious volunteer. Rice

Decl. ¶¶ 21-23, 39; Peters Decl. ¶ 2 (ECF No. 84).

Plaintiff primarily complains that pre-recorded services were often unavailable or

repetitive and individual meetings with clergypersons were not accommodated. However,

plaintiff presents no evidence rebutting defendants’ contention that pre-recorded services were

available on a weekly basis with a few exceptions, Peters Decl. ¶ 2, and no evidence suggests

that LCAC officials denied any request for an individual meeting with a clergyperson. To the

contrary, the record reflects that plaintiff signed up for and attended religious services on two

occasions and did not request an individual meeting. Counsel Decl. Exs. 1-2 (ECF No. 62).

Moreover, plaintiff presents no evidence suggesting that the suspension of in-person religious

services coerced him to forgo sincerely-held beliefs or engage in conduct contrary to his beliefs.

Accordingly, plaintiff fails to establish that LCAC officials imposed a substantial burden

on the exercise of his religious beliefs, and summary judgment is granted on this claim.

C. Retaliation

Finally, plaintiff alleges that defendants retaliated against him because he exercised his

First Amendment right to lodge complaints and file legal claims against LCAC officials.

Specifically, plaintiff alleges that defendants retaliated by: 1) issuing a false misconduct report

that led to disciplinary sanctions; 2) moving him four times during the week he was in

disciplinary housing, causing a delay in his mail; 3) scheduling dayroom time in disciplinary

housing with inmates who were “way out of” his custody level; 4) placing plaintiff’s “phone

book” and his grievance about a higher-level custody inmate in the property box of that

particular inmate; and 5) leaving him in quarantine for an unspecified time after he tested

negative for COVID-19. Sec. Am. Comp. ¶¶ 22-26.3

3 Plaintiff also alleged that jail officials retaliated against him by telling other inmates that

plaintiff’s legal complaints were the reason extra food trays could no longer be provided and

telling inmate workers they must stop passing messages for plaintiff or risk the loss of privileges.

Sec. Am. Compl. ¶¶ 27-28. For the reasons explained in the Court’s Order denying plaintiff’s

To prevail on a § 1983 claim for First Amendment retaliation, plaintiff must establish that

defendants took “adverse action” against him “because of” constitutionally protected conduct,

and that action “chilled” the exercise of his First Amendment rights and failed to “advance a

legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); Barnett

v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam). Plaintiff fails to establish these

elements.

As an initial matter, plaintiff fails to establish the factual basis for several of his

retaliation claims. Plaintiff presents no evidence, such as custody or housing records or discovery

responses, showing that LCAC officials moved him four times in one week, placed him with

higher custody-level inmates, or left him in quarantine. For this reason alone, plaintiff fails to

meet his burden as to these claims.

Further, in his response to defendants’ motion, plaintiff does not contend that defendants’

actions had a chilling effect on his protected conduct and, aside from the disciplinary sanction

against him, plaintiff fails to show that he suffered “harm that is ‘more than minimal.’” Watison

v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (explaining that a “plaintiff who fails to allege a

chilling effect may still state a claim if he alleges he suffered some other harm that is more than

minimal”) (internal citations and quotation marks omitted). Plaintiff presents no evidence

suggesting that he suffered more than minimal harm from being moved to different cells, sharing

dayroom time with higher-custody inmates, or being quarantined. Likewise, plaintiff does not

show that he suffered more than minimal harm or even the threat of harm when a grievance and

his phone book were placed in another inmate’s property box. Indeed, plaintiff presents no

evidence that the other inmate saw plaintiff’s grievance or knew plaintiff had complained about

Motion to Amend, these allegations do not state viable claims for retaliation. See Order dated

July 26, 2020 (ECF No. 86).

sharing dayroom time with him. Thus, plaintiff fails to sustain claims of retaliation based on

these incidents.

Remaining is plaintiff’s retaliation claim arising from the issuance of a misconduct report

and resulting disciplinary sanction. While a disciplinary sanction constitutes an adverse action,

plaintiff fails to present evidence suggesting that he was disciplined because of his protected

conduct or that the disciplinary sanction failed to advance a legitimate correctional goal.

On June 7, 2020, Officer Hoppe prepared an Incident Report stating that he saw plaintiff

standing on his sink and instructed Deputy Baeuerlen to speak with plaintiff about his conduct.

Second Counsel Decl. Ex. 1 at 1 (ECF No. 85-1). According to the Incident Report, Deputy

Baeuerlen told plaintiff to stop standing on his sink and plaintiff responded, “OK, Man.” Id.

Officer Hoppe subsequently witnessed plaintiff stand on his sink several more times, and he

directed Deputy Baeuerlen to speak with plaintiff again. Id. Deputy Baeuerlen directed plaintiff

to stay off of the sink. Officer Hoppe subsequently issued a misconduct report based on

plaintiff’s failure to comply with an officer’s orders. Id.

In response to the Incident Report, plaintiff asserted that Deputy Baeuerlen only asked

plaintiff “what [he] was standing on” the first time he spoke with plaintiff and did not

specifically direct plaintiff to stay off of the sink until he approached plaintiff a second time.

Second Counsel Decl. Ex. 1 at 2. Plaintiff maintained that he did not climb onto his sink after

Deputy Baeuerlen specifically told him not to and claimed it was a “misunderstanding.” Id.

Plaintiff also presented the statement of a witness who stated that Deputy Baeuerlen did not

specifically direct plaintiff to stop standing on the sink until he approached plaintiff the second

time. Id.

On June 9, 2020, a disciplinary hearing was held before Sgt. Rosander. Plaintiff admitted

standing on his sink but stated that he did not do so after Deputy Baeuerlen approached him a

second time and told him to stop. Plaintiff argued there must have been “confusion” because the

officer who issued the misconduct report was not the officer who told him to stop standing on the

sink. Id. Ex. 1 at 4. Plaintiff also presented the statement of his witness, as described above.

Sgt. Rosander found by a preponderance of the evidence that plaintiff violated an order

given by Deputy Baeuerlen, based on the statements of the deputy, video evidence, and the

witness’s statement. Id. Plaintiff received a disciplinary sanction of seven days in disciplinary

housing and was housed in the disciplinary unit from June 9 to June 16, 2020. Rice Decl. ¶ 34.

Plaintiff does not present evidence showing that he received the misconduct report or

disciplinary sanction because of his protected conduct. Plaintiff relies a jail log reflecting that

some LCAC officers or deputies knew in late May that plaintiff intended to initiate a lawsuit

against LCAC. Pl.’s Resp. “Retaliation 2 and 3” (ECF No. 81 at 47-48). However, timing alone

does not necessarily establish causation, and plaintiff’s evidence does not indicate that Officer

Hoppe, Deputy Baeuerlen, or Sgt. Rosander read the jail log on those days or otherwise had

knowledge of plaintiff’s lawsuit. See Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995) (noting

that while “timing can properly be considered as circumstantial evidence of retaliatory intent,” it

is not always sufficient to support such an inference).

Even if their knowledge and causation could be inferred from the jail log, plaintiff “bears

the burden of pleading and proving the absence of legitimate correctional goals for the conduct

of which he complains.” Id. at 806. He fails to meet this burden. Plaintiff does not dispute that he

repeatedly stood on his sink after Deputy Baeuerlen approached him the first time, and he relied

on semantics to argue that the deputy did not specifically direct him to stay off of his sink.

Regardless of whether miscommunication or confusion occurred, the disciplinary sanction was

supported by “some evidence” and does not support an inference of retaliation. Given the

circumstances and the disciplinary findings, plaintiff does not show that the misconduct report

and resulting disciplinary sanction failed to advance a legitimate penological goal.

In his response to defendants’ motion, plaintiff also suggests that the disciplinary

proceeding violated his procedural due process rights. Plaintiff is incorrect.

In the context of disciplinary actions, due process requirements are met if an inmate

receives: 1) advance written notice of the charges and the evidence against him; 2) an

opportunity to present documentary evidence and witnesses; 3) legal assistance if the charges are

complex or the inmate is illiterate; 4) a written statement describing the reasons for the

disciplinary action; and 5) a disciplinary decision supported by “some evidence in the record.”

Wolff v. McDonnell, 418 U.S. 539, 563, 565-66, 570 (1974); see also Superintendent v. Hill, 472

U.S. 445, 454-55 (1985). The record reflects that plaintiff received notice of the alleged rule

violation, the opportunity to present a witness statement, a statement of reasons for the

disciplinary findings, and a decision supported by “some evidence.” Second Counsel Decl. &

Exs. Plaintiff received the process he was due.

CONCLUSION

Defendants’ Motion for Summary Judgment (ECF No. 60) is GRANTED, and this action

is DISMISSED.

IT IS SO ORDERED.

DATED this _2_4_t_h_ day of January, 2022.

________/_s_/A__n_n_ A__ik_e_n________

Ann Aiken

United States District Judge